Editorial: No rubber stamp for tobacco plan

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The tobacco-regulation plan a U.S. Senate committee is to take up next month is not new, but the license it would grant government to micro-manage advertising is still eerie and ominous. Many ad people, rightly, have little sympathy for the problems of tobacco, a product that kills. As for tobacco marketers, principles important to the wider ad community, like fighting for the maximum freedom from regulation for truthful ads, are likely to take a back seat to other imperatives. In other words, tobacco companies may once again deal away advertising rights to achieve other goals.

Yet what happens next should get the close attention of the broader U.S. ad industry. Any business that now, or in the future, markets a controversial product or service has an interest in seeing that this tobacco-control plan is not simply rubber-stamped by a Congress eager to look tough on tobacco when it goes to the voters next year.

The Senate tobacco plan would enact as law a 1996 tobacco regulatory program the Food and Drug Administration tried to issue on its own authority. The FDA plan allowed its regulators to dictate packaging and advertising specifics, both in the media and in stores, to a degree that may not be defensible under the First Amendment, which protects truthful "commercial speech" for legal products (such as tobacco) from regulation that cannot be carefully justified. The Supreme Court in 2000 ruled that the FDA cannot act without specific authority from Congress. But it never examined the First Amendment issues.

The issue for the ad community, however, is not what happens to the tobacco industry. It is how any tobacco "solution" will be used against every other marketer whose product is age-restricted, or has health, safety or even moral issues attached to it. Truthful, responsible advertising is the best solution. "Protecting" Americans by smothering truthful ads for legal products is not.

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